EXHIBIT 7 - FORM OF WARRANT AGREEMENT
This WARRANT AGREEMENT (the "Agreement"), dated as of [ ], 2000, by
and among PROMEDCO MANAGEMENT COMPANY, a Delaware corporation (the
"Corporation") and GS CAPITAL PARTNERS III, L.P., a Delaware limited
partnership ("GSCP"), and certain affiliates of GSCP set forth on the
signature page of this Agreement (the "GSCP Affiliates", and collectively
with GSCP and including their respective successors and assigns, the
"Warrantholders", and each individually, a "Warrantholder").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Corporation has entered into a Securities Purchase
Agreement, dated as of January 13, 2000, and the First Amendment to the
Securities Purchase Agreement, dated as of May 5, 2000 (as amended, the
"Purchase Agreement"), with the Warrantholders, pursuant to which the
Company has agreed to sell to the Warrantholders warrants (the "Warrants")
to purchase up to an aggregate of 125,000 shares (subject to adjustment as
provided in Sections 11 hereof), exercisable at any time, at an exercise
price of $97.00 per share, of the Corporation's Series B Preferred Stock,
par value $.01 per share (the "Series B Preferred Stock") (the shares of
Series B Preferred Stock issuable on exercise of the Warrants being herein
called the "Warrant Shares");
WHEREAS, the parties hereto desire to enter into this Agreement
in order to set forth the terms and conditions of the Warrants;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
ARTICLE I
Section 1.01: Definition of Terms. As used herein, the following
capitalized terms shall have the following respective meanings (capitalized
terms used herein and not defined herein shall have the meanings assigned
to such terms in the Purchase Agreement):
(a) Additional Senior Debt Financing: Any senior debt financing
obtained by the Corporation after the Second Closing which after giving
effect to such financing, would result in the Corporation having senior
debt financing in an aggregate principal amount in excess of $182.5 million
under the Amended and Restated Credit Agreement or another facility
syndicated or privately placed by a bank or its affiliates on terms at
least as favorable to the Corporation as the terms governing the
Corporation's Tranche B Term Notes purchased by General Electric Capital
Corporation under the Amended and Restated Credit Agreement (the "GE
Notes"), including, without limitation, a maturity date no earlier than the
maturity date of the GE Notes, covenants and events of default no more
restrictive than the covenants and events of default contained in the GE
Notes and an interest rate no more than 100 basis points higher than the
interest rate on the GE Notes as each such term is in effect on the date
hereof; provided, however, that Additional Senior Debt Financing shall not
include any financing the proceeds of which are used to replace or
refinance any existing senior debt financing of the Corporation.
(b) Amended and Restated Credit Agreement: The Amended and Restated
Credit Agreement, dated as of the date hereof, among the Corporation, the
lenders from time to time parties thereto, Bank of America, N.A., a
national banking association, as administrative agent for the lenders
thereunder and Banc of America Securities LLC, as arranger.
(c) Business Day: A day other than a Saturday, Sunday or other day on
which banks in the State of New York are authorized by law to remain
closed.
(d) Common Stock: The Corporation's common stock, par value $0.01 per
share.
(e) Credit Agreement: The Credit Agreement dated as of December 17,
1998, among the Corporation, the Lenders referred to therein and Bank of
America, N.A. as Agent and Banc of America Securities, LLC, as Arranger,
and as amended by the First Amendment to Credit Agreement, dated as of
December 31, 1998, the Amended and Restated Credit Agreement and First
Amendment to Guarantee and Collateral Agreement, dated as of June 29, 1999,
the First Amendment to Amended and Restated Credit Agreement dated as of
November 9, 1999, the Consent and Second Amendment to Amended and Restated
Credit Agreement, dated as of November 12, 1999, and the Second Amendment
to Amended and Restated Credit Agreement, dated as of January 13, 2000, all
as amended, modified, renewed, refunded, restated, replaced or refinanced
from time to time.
(f) Exercise Price: On a per Warrant Share basis, $97.00, as adjusted
in accordance with Article IV hereof.
(g) Governmental Entity: Any supernational, national, foreign,
federal, state or local judicial, legislative, executive, administrative or
regulatory body or authority.
(h) Market Price: The price of the Common Stock, as reported on the
Nasdaq National Market, not identified as having been reported late to such
system, or if the Common Stock is so traded, but not so quoted, the average
of the bid and ask prices, as those prices are reported on the Nasdaq
National Market.
(i) Parity Stock: Any capital stock or any rights, warrants or other
securities convertible into or exchangeable for shares of any capital stock
of the Corporation ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Preferred Stock.
(j) Senior Stock: Any capital stock or any rights, warrants or other
securities convertible into or exchangeable for shares of any capital stock
of the Corporation ranking senior to (either as to dividends or upon
liquidation, dissolution or winding up) the Series B Preferred Stock.
(k) Trading Day: A Business Day or, if the Common Stock is listed or
admitted to trading on any national securities exchange, a day on which
such exchange is open for the transaction of business.
ARTICLE II
DURATION AND EXERCISE OF WARRANT
Section 2.01: Duration of Warrant. Subject to the terms of this
Agreement, the Warrants may be exercised at any time prior to the third
anniversary of the date hereof (the "Expiration Date"). If any Warrant is
not exercised on or before the Expiration Date, it shall become void, and
all rights hereunder shall thereupon cease.
Section 2.02: Optional Exercise of Warrant.
(a) Subject to Section 2.02(b) hereof, the Warrantholder may exercise
any Warrant, in whole or in part, by presentation and surrender of the
Warrant Certificate in the form of the Warrant Certificate attached as
Exhibit A hereto (the "Warrant Certificate") to the Corporation at its
principal corporate office (deemed to be the address for notice pursuant to
Section 5.05) or at the office of its stock transfer agent, if any, with
the subscription form attached hereto as Exhibit B (the "Form of Election
to Purchase") duly executed and accompanied by payment of the full Exercise
Price for each Warrant Share to be purchased. The exercise of the Warrant
shall be deemed made upon the receipt by the Corporation of the originally
executed Form of Election to Purchase, the Warrant Certificate and the full
Exercise Price, calculated as of the date of receipt by the Corporation of
the Election to Purchase.
(b) Upon receipt of any Warrant Certificate with the Form of Election
to Purchase fully executed and accompanied by payment of the aggregate
Exercise Price for the Warrant Shares for which the Warrant is then being
exercised pursuant to the provisions of the foregoing Section 2.02(a), the
Corporation shall cause to be issued certificates for the total number of
Warrant Shares for which the Warrant is being exercised in such
denominations as are requested for delivery to the Warrantholder registered
in the name of the Warrantholder or its nominee, and the Corporation shall
thereupon deliver such certificates to the Warrantholder. The Warrantholder
shall be deemed to be the holder of record of the shares of Warrant Shares
issuable upon such exercise, notwithstanding that the stock transfer books
of the Corporation shall then be closed or that certificates representing
such shares of Warrant Shares shall not then be actually delivered to the
Warrantholder.
(c) Upon any partial exercise, the Corporation shall promptly issue an
amended Warrant Certificate representing the remaining amount of Warrant
Shares purchasable hereunder. All other terms and conditions of such
amended Warrant Certificate shall be identical to those contained herein.
(d) The Corporation shall pay any and all stock transfer and similar
taxes which may be payable in respect of the issue of any Warrant Shares to
the Warrantholder.
Section 2.03: Mandatory Exercise of Warrant.
(a) Subject to satisfaction of the conditions set forth below,
the Corporation shall have the right, at any time or from time to time
prior to 5 p.m. New York City time on December 31, 2000 (the "Mandatory
Exercise Period"), at its sole option and election made in accordance with
clause (b) below (a "Mandatory Exercise Election"), to require the
Warrantholders to exercise, on a pro-rata basis, up to (x) the aggregate
number of Warrants set forth in the table below opposite the amount of
Additional Senior Debt Financing obtained by the Corporation, less (y) the
aggregate number of Warrants exercised prior to such Mandatory Exercise
Election (the "Callable Warrants").
Additional Senior Debt Financing Obtained
by the Corporation Callable Warrants
----------------------------------------- -----------------
$5,000,000............................... 25,000 Warrants
$10,000,000.............................. 50,000 Warrants
$15,000,000.............................. 75,000 Warrants
$20,000,000.............................. 100,000 Warrants
$25,000,000.............................. 125,000 Warrants
The Corporation's right to require the Warrantholders to exercise Warrants
on any occasion during the Mandatory Exercise Period as provided above is
subject on each such occasion to the satisfaction of the following
conditions:
(i) the Company shall have obtained Additional Senior Debt
Financing in the minimum amount necessary to call the minimum number of
Warrants set forth in the table above;
(ii) the Market Price per share of the Common Stock at all times
on each day during the 15 Trading Days immediately preceding the date of
such Mandatory Exercise Election must be greater than or equal to $2.00 per
share (as adjusted for any stock dividends, combinations or stock splits);
(iii) the Common Stock shall be listed or admitted to be listed
on any of the New York Stock Exchange, the American Stock Exchange, or the
Nasdaq National Market;
(iv) the Corporation shall have performed, satisfied and complied
with each of its covenants and agreements set forth in this Agreement, the
Purchase Agreement and the other Transaction Documents to be performed,
satisfied and complied with prior to the date of the Mandatory Exercise
Election and the Corporation's representations and warranties contained
therein shall be true and correct in all material respects (disregarding
for this purpose all references in such representations and warranties to
any materiality, Material Adverse Effect, Knowledge or similar
qualifications) as of the date of the Mandatory Exercise Election;
(v) there being no statute, rule or regulation or order of any
Governmental Entity, court or administrative agency in effect that
prohibits the exercise of the Callable Warrants; and
(vi) any Warrantholder shall have made a claim for
indemnification under the Purchase Agreement and such claim remains unpaid.
(b) If the Corporation elects to cause the Warrantholders to
exercise the Callable Warrants pursuant to a Mandatory Exercise Election,
it shall furnish to the Warrantholders a written notice thereof within two
Business Days of such exercise (the "Call Notice"), which Call Notice shall
be accompanied by a certificate from the Chief Financial Officer of the
Corporation certifying (i) such Warrantholder's pro rata portion of the
Callable Warrants subject to the Mandatory Exercise Election, (ii) the
amount of Additional Senior Debt Financing obtained by the Corporation,
(iii) the date of the Mandatory Exercise Election and (iv) that all of the
Mandatory Exercise Conditions have been satisfied. Not later than five
Business Days following the later of (i) receipt of the Call Notice, and
(ii) the expiration or termination of any waiting period (and any extension
thereof) applicable to the acquisition by the Warrantholder thereof of the
shares of Series B Preferred Stock issuable upon exercise of the Callable
Warrants under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended and the receipt of all governmental and contractual permits,
consents and approvals necessary in connection with such acquisition, the
Warrantholder shall deliver to the Corporation an originally executed Form
of Election to Purchase, the applicable Warrant Certificate(s) and the full
Exercise Price, calculated as of the date of receipt by the Corporation of
the Election to Purchase.
(c) Upon receipt of any Warrant Certificate with the Form of
Election to Purchase fully executed and accompanied by payment of the
aggregate Exercise Price for the Warrant Shares for which the Callable
Warrants are then being exercised pursuant to the provisions of the
foregoing Section 2.03(a), the Corporation shall cause to be issued
certificates for the total number of Warrant Shares for which the Callable
Warrants are being exercised in such denominations as are requested for
delivery to the Warrantholder registered in the name of the Warrantholder
or its nominee, and the Corporation shall thereupon deliver such
certificates to the Warrantholder. The Warrantholder shall be deemed to be
the holder of record of the shares of Warrant Shares issuable upon such
exercise, notwithstanding that the stock transfer books of the Corporation
shall then be closed or that certificates representing such shares of
Warrant Shares shall not then be actually delivered to the Warrantholder.
(d) Upon any partial exercise, the Corporation shall promptly
issue an amended Warrant Certificate representing the remaining amount of
Warrant Shares purchasable hereunder. All other terms and conditions of
such amended Warrant Certificate shall be identical to those contained
herein.
(e) The Corporation shall pay any and all stock transfer and
similar taxes which may be payable in respect of the issue of any Warrant
Shares to the Warrantholder.
Section 2.04: Fractional Shares. The Corporation shall not issue
fractional shares of its capital stock in connection with the exercise of
the Warrants.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDER
Section 3.01: No Rights as Shareholders; Notice to Warrantholders.
Except as set forth in Section 3.02 hereof, nothing contained in this
Warrant Agreement shall be construed as conferring upon the Warrantholder
the right to vote or to receive dividends or to consent or to receive
notice as a stockholder in respect of any meeting of stockholders for the
election of directors of the Corporation or of any other matter, or any
rights whatsoever as a stockholder of the Corporation. The Corporation
shall give notice to the Warrantholder by certified mail if at any time
prior to the expiration or exercise in full of all of its Warrant, any of
the following events shall occur:
(a) the Corporation shall declare any dividend or distribution with
respect to its capital stock;
(b) a dissolution, liquidation or winding up of the Corporation shall
be proposed; or
(c) a capital reorganization or reclassification of the capital stock
of the Corporation, any consolidation or merger of the Corporation with or
into another corporation, any transaction or series of transactions in
which more than fifty percent (50%) of the voting securities of the
Corporation are transferred to another person, or of any sale or conveyance
to another corporation of the property of the Corporation as an entirety or
substantially as an entirety.
Such giving of notice shall be effected at least five Business Days
prior to the date fixed as a record date or effective date or the date of
closing of the Corporation's stock transfer books for the determination of
the stockholders entitled to such dividend or distribution, or for the
determination of the stockholders entitled to vote on such proposed merger,
consolidation, sale, conveyance, dissolution, liquidation or winding up.
Such notice shall specify such record date or the date of closing the stock
transfer books, as the case may be.
Section 3.02: Actions Requiring Warrantholder Consent. So long as at
least 10% of the Warrants remain outstanding, the Corporation shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly,
without the affirmative vote or consent of the holders of not less than 50%
of all Warrants at any time outstanding:
(i) authorize, increase the authorized number of shares of,
or issue any shares of Senior Stock or Parity Stock;
(ii) increase the authorized number of shares of, or issue
(including on conversion or exchange of any convertible or exchangeable
securities or by reclassification) any shares of, Series B Preferred Stock
other than as required by the Series B Certificate of Designation and upon
exercise of the Warrants; or
(iii) reclassify any shares of Series B Preferred Stock or
authorize, adopt or approve an amendment to the Series B Certificate of
Designation which would increase or decrease the par value of the shares of
Series B Preferred Stock, or alter or change the powers, preferences or
special rights of the Series B Preferred Stock so as to affect such shares
of Series B Preferred Stock adversely.
Section 3.03: Lost, Stolen, Mutilated or Destroyed Warrants. If any
Warrant Certificate is lost, stolen, mutilated or destroyed, the
Corporation may, on such reasonable terms as to indemnity or otherwise as
it may in its reasonable discretion impose (which shall, in the case of a
mutilated Warrant Certificate, include the surrender thereof), issue a new
Warrant Certificate of like denomination and tenor as, and in substitution
for, the Warrant Certificate.
ARTICLE IV
SPLIT-UP, COMBINATION,
EXCHANGE AND TRANSFER OF WARRANTS
Section 4.01: Split-Up, Combination, Exchange and Transfer of
Warrants. Subject to the provisions of Section 4.02 hereof, any Warrant
Certificate may be split up, combined or exchanged for another Warrant
Certificate or Warrant Certificates containing the same terms to purchase a
like aggregate number of Warrant Shares. If the Warrantholder desires to
split up, combine or exchange any Warrant Certificate, the Warrantholder
shall make such request in writing delivered to the Corporation and shall
surrender to the Corporation the Warrant Certificate and any other Warrant
Certificates to be so split-up, combined or exchanged. Upon any such
surrender for a split-up, combination or exchange, the Corporation shall
execute and deliver to the person entitled thereto a Warrant Certificate or
Warrant Certificates, as the case may be, as so requested.
Section 4.02: Adjustments for Reclassification, Exchange and
Substitution. If shares of the Series B Preferred Stock issuable upon
exercise of the Warrants, shall be changed into the same or a different
number of shares of any other class or classes of stock or other securities
or property, whether by capital reorganization, reclassification, sale of
the Corporation or other transaction, each Warrant shall, in lieu of
representing the right to purchase shares of Series B Preferred Stock,
represent the right to purchase the number of shares of stock or other
securities or property to which a holder of the number of shares of Series
B Preferred Stock shall have been entitled upon such reorganization,
reclassification, sale of the Corporation or other transaction, and the
Exercise Price per Warrant Share in effect immediately prior to such event
shall be appropriately adjusted, so that (i) the aggregate Exercise Price
in effect immediately after such event payable by the Warrantholders shall
be the same as that payable by the Warrantholders immediately before such
event, and (ii) the Warrantholders would receive the number and type of
stock or other securities or property which such Warrantholders would have
been entitled to receive after the happening of any such event, if
immediately prior to such event, such holder had exercised such holders'
Warrants to acquire shares of Series B Preferred Stock. The provisions of
this Section 4.02(a) shall similarly apply to successive reorganizations,
reclassifications, sale of the Corporation or other transactions.
Section 4.03: Adjustments from Second Closing. The Series B Preferred
Stock shall be deemed to be outstanding from and after the Second Closing
for purposes of calculating adjustments to the Conversion Price (as defined
in the Series B Certificate of Designation) pursuant to Sections 9(e), (f)
and (g) of the Series B Certificate of Designation.
Section 4.04: Form of Warrant After Adjustment. The form of the
Warrant Certificate need not be changed because of any adjustments in the
Exercise Price or the number or kind of the Warrant Shares, and Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in this Warrant, as initially
issued.
Section 4.05: Transfer. Subject to the provisions of the Securities
Purchase Agreement, the Warrant Certificates and all rights thereunder may
be sold, transferred or otherwise disposed of, in whole or in part, to any
person in accordance with and subject to the provisions of the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder. Upon the delivery to the Corporation at
its principal corporate office of any Warrant Certificate along with a duly
completed Form of Transfer substantially in the form of Exhibit C hereto,
the Corporation shall execute and deliver a new Warrant Certificate in the
form of the Warrant Certificate substantially in the form of Exhibit A
hereto, but registered in the name of the transferee, to purchase the
number of Warrant Shares assigned to the transferee. In case the
Warrantholder shall assign any Warrant Certificate with respect to less
than all of the Warrant Shares that may be purchased under any Warrant
Certificate, the Corporation shall execute a new Warrant Certificate in the
form of the Warrant Certificate substantially in the form of Exhibit A
hereto for the balance of such Warrant Shares and deliver such new Warrant
Certificate to the Warrantholder.
Section 4.06: Restrictive Legend. Each Warrant Share issued upon
exercise of the Warrants shall bear a legend containing the following words
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE
SECURITIES LAWS OF ANY JURISDICTION. SUCH SECURITIES
MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED,
ASSIGNED, ENCUMBERED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO (I) A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS
EFFECTIVE UNDER SUCH ACT OR APPLICABLE STATE SECURITIES
LAW, OR (II) ANY EXEMPTION FROM REGISTRATION UNDER SUCH
ACT, OR APPLICABLE STATE SECURITIES LAW, RELATING TO
THE DISPOSITION OF SECURITIES, INCLUDING RULE 144.
The requirement that the above securities legend be placed upon
certificates evidencing any such securities shall cease and terminate upon
the earliest of the following events: (i) when such shares are transferred
in an underwritten public offering, (ii) when such shares are transferred
pursuant to Rule 144 under the Securities Act or (iii) when such shares are
transferred in any other transaction if the seller delivers to the
Corporation an opinion of its counsel, which counsel and opinion shall be
reasonably satisfactory to the Corporation, or a "no-action" letter from
the Staff of the Securities and Exchange Commission, in either case to the
effect that such legend is no longer necessary in order to protect the
Corporation against a violation by it of the Securities Act upon any sale
or other disposition of such shares without registration thereunder. Upon
the occurrence of such event, the Corporation, upon the surrender of
certificates containing such legend, shall, at its own expense, deliver to
the holder of any such securities as to which the requirement for such
legend shall have terminated, one or more new certificates evidencing such
securities not bearing such legend. Upon the occurrence of any event
requiring the removal of a legend hereunder, the Corporation, upon the
surrender of certificates containing such legend, shall, at its own
expense, deliver to the holder of any such shares as to which the
requirement for such legend shall have terminated, one or more new
certificates evidencing such shares not bearing such legend.
ARTICLE V
OTHER MATTERS
Section 5.01: Successors and Assigns. The terms and provisions of this
Warrant Agreement shall bind and inure to the benefit of the Warrantholder
and its successors and assigns.
Section 5.02: No Inconsistent Agreements. The Corporation will not on
or after the date of this Warrant Agreement enter into any agreement with
respect to its securities which is inconsistent with the rights granted to
the Warrantholder or otherwise conflicts with the provisions hereof. The
Corporation agrees and hereby represents that the rights granted to the
Warrantholder hereunder do not in any way conflict with and are not
inconsistent with the rights granted to holders of the Corporation's
securities under any other agreements.
Section 5.03: Amendments and Waivers. The terms and provisions of this
Agreement may be modified or amended, or any of the provisions hereof
waived, temporarily or permanently, pursuant to the written consent of the
Corporation and Warrantholders holding at least 50% of the outstanding
Warrants.
Section 5.04: GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW.
Section 5.05: Notice. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to
such party at the address set forth below or such other address as may
hereafter be designated in writing by such party to the other parties:
(i) if to the Company, to:
ProMedCo Management Company
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attention: Mr. Xxxxxx Xxxxx
Chief Financial Officer
with a copy to (which shall not constitute notice):
Xxxx, Xxxxx & Xxxxxx
000 Xxx Xxxxxxxxx, XX
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(ii) if to the Warrantholders, to:
GS Capital Partners III, L.P.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxxx
Attention: Xxx Xxxxx, Esq.
with copies to (which shall not constitute notice):
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
All such notices, requests, consents and other communications
shall be deemed to have been given or made if and when delivered personally
or by overnight courier to the parties at the above addresses or sent by
electronic transmission, with confirmation received, to the telecopy
numbers specified above (or at such other address or telecopy number for a
party as shall be specified by like notice).
Section 5.06: Severability. Whenever possible, each provision of this
Warrant Agreement shall be interpreted in such manner as to be effective
and valid, but if any provision of this Warrant Agreement is held to be
invalid or unenforceable in any respect, such invalidity or
unenforceability shall not render invalid or unenforceable any other
provision of this Warrant Agreement.
Section 5.07 Entire Agreement. This Agreement and the other
Transaction Documents and the Confidentiality Agreement writings referred
to herein or delivered pursuant hereto which form a part hereof contain the
entire agreement among the parties with respect to the subject matter
hereof and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
Section 5.08 Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart hereof shall be deemed to
be an original instrument, but all such counterparts together shall
constitute but one agreement.
Section 5.09 Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
PROMEDCO MANAGEMENT COMPANY
By:
---------------------------------
Name:
Title:
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.L.C.,
its general partner
By:
---------------------------------
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III, L.L.C.,
its general partner
By:
---------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO. VERWALTUNGS GmbH
By:
---------------------------------
Name:
Title:
and
By:
---------------------------------
Name:
Title:
XXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street 2000, L.L.C.,
its general partner
By:
---------------------------------
Name:
Title:
EXHIBIT A
---------
Form of Warrant Certificate
[Face]
Warrant No. __
Warrant Certificate
PROMEDCO MANAGEMENT COMPANY
This Warrant Certificate certifies that _____________, or
registered assigns, is the registered Warrantholder of Warrants (the
"Warrants") expiring on the Expiration Date (as defined in the Warrant
Agreement, dated [ ], 2000, among the Warrantholders and the Corporation
(the "Warrant Agreement")) to purchase an aggregate of __________ shares of
Series B Preferred Stock, par value $.01 per share (the "Series B Preferred
Stock"), of ProMedCo Management Company, a Delaware corporation (the
"Corporation"). Each Warrant entitles the Warrantholder upon exercise to
purchase from the Corporation at any time on or after [ ], 2000 and prior
to 5:00 p.m. New York City time on the Expiration Date, __________ fully
paid and nonassessable shares of Series B Preferred Stock ("Warrant
Shares") upon surrender of this Warrant Certificate, subject to the
conditions set forth herein and in the Warrant Agreement referred to on the
reverse hereof, subject to adjustments as provided in the Warrant
Agreement.
No Warrant may be exercised after 5:00 p.m., New York City time
on the Expiration Date, and to the extent not exercised by such time, such
Warrants shall become void.
Subject to (i) the Corporation receiving additional senior debt
financing, (ii) the market price of the Corporation's common stock, par
value $0.01 per share (the "Common Stock"), remaining at or above $2.00 per
share for a specified period, and (iii) the satisfaction of the other
conditions set forth in Section 2.03(a) of the Warrant Agreement, the
Corporation may have the right, at any time prior to 5 p.m. New York City
time on December 31, 2000, at its sole option and election to require the
exercise of this Warrant.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof, which provisions shall
for all purposes have the same effect as though fully set forth at this
place.
THIS WARRANT CERTIFICATE SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS.
EXERCISABLE ONLY ON AND AFTER [ ], 2000 OR BEFORE 5:00 P.M. NEW
YORK CITY TIME ON THE EXPIRATION DATE.
IN WITNESS WHEREOF, ProMedCo Management Company has caused this
Warrant Certificate to be signed by its Chief Financial Officer.
Dated: [ ], 2000
PROMEDCO MANAGEMENT COMPANY
By:
---------------------------------
Name:
Title:
Form of Warrant Certificate
[Reverse]
THE SECURITIES FOR WHICH THE WARRANT IS EXERCISABLE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF
ANY JURISDICTION. SUCH SECURITIES MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED, ASSIGNED, ENCUMBERED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER
SUCH ACT OR APPLICABLE STATE SECURITIES LAW, OR (II) ANY
EXEMPTION FROM REGISTRATION UNDER SUCH ACT, OR APPLICABLE STATE
SECURITIES LAW, RELATING TO THE DISPOSITION OF SECURITIES,
INCLUDING RULE 144.
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants expiring on the Expiration Date and
entitling the holder upon exercise to receive shares of Series B Preferred
Stock of the Corporation, par value $.01 per share (the "Series B Preferred
Stock"), and are issued or to be issued pursuant to a Warrant Agreement,
duly executed and delivered by the Corporation, which Warrant Agreement is
hereby incorporated by reference in and made a part of this instrument and
is hereby referred to for a description of the rights, limitation of
rights, obligations, duties and immunities thereunder of the Corporation
and the holders (the words "holders" or "holder" meaning the registered
holders or registered holder) of the Warrants. All terms not otherwise
defined herein shall have the meanings set forth in the Warrant Agreement.
A copy of the Warrant Agreement may be obtained by the Warrantholder hereof
upon written request to the Corporation.
The Exercise Price, and the type and number of Warrant Shares are
subject to adjustments from time to time upon the happening of certain
events as provided in the Warrant Agreement.
Warrants may be exercised at any time on or after [ ], 2000 and
prior to 5:00 p.m. New York City time on the Expiration Date. The holder of
Warrants evidenced by this Warrant Certificate may exercise such Warrants
by surrendering this Warrant Certificate, with the Form of Election to
Purchase set forth hereon properly completed and executed, together with
any required payment to the Corporation of the Exercise Price for each
Warrant then exercised. In the event that upon any exercise of Warrants
evidenced hereby the number of Warrants exercised shall be less than the
total number of Warrants evidenced hereby, there shall be issued to the
Warrantholder hereof or his assignee a new Warrant Certificate evidencing
the number of Warrants not exercised.
Subject to (i) the Corporation receiving additional senior debt
financing, (ii) the market price of the Common Stock remaining at or above
$2.00 per share for a specified period and (iii) the satisfaction of the
other conditions set forth in Section 2.03(a) of the Warrant Agreement, the
Corporation may have the right, at any time prior to 5 p.m. New York City
time on December 31, 2000, at its sole option and election to require the
exercise of this Warrant.
Warrant Certificates, when surrendered at the office of the
Corporation by the registered Warrantholder in person or by legal
representative or attorney duly authorized in writing, may be exchanged, in
the manner and subject to the limitations provided in the Warrant
Agreement, but without payment of any service charge except for any tax or
other governmental charge imposed in connection therewith, for another
Warrant Certificate or Warrant Certificates of like tenor evidencing in the
aggregate a like number of Warrants.
Upon due presentation for registration of transfer of
this Warrant Certificate at the office of the Corporation, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s) in
exchange for this Warrant Certificate, subject to the limitations provided
in the Warrant Agreement, without charge.
The Corporation may deem and treat the registered
Warrantholder(s) thereof as the absolute owner(s) of this Warrant
Certificate (notwithstanding any notation of ownership or other writing
hereon made by anyone), for the purpose of any exercise hereof, of any
distribution to the Warrantholder(s) hereof, and for all other purposes,
and the Corporation shall not be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any
Warrantholder hereof to any rights of a shareholder of the Corporation.
EXHIBIT B
---------
Form of Election to Purchase
(To Be Executed Upon Exercise of Warrant)
Select Type of Exercise:
____________, the undersigned hereby irrevocably elects to
exercise the right, represented by this Warrant Certificate, to receive
____________ shares of Series B Preferred Stock, subject to adjustments as
provided in the Warrant Agreement, dated ______, 2000, among the ProMedCo
Management Company and the several warrantholders named thereto, and hereby
tenders for payment for such shares to the order of ProMedCo Management
Company in the amount of $____________ in accordance with the terms hereof,
which represents the full Exercise Price as of the date of receipt of this
Form of Election to Purchase. The undersigned has also enclosed the true
and correct original Warrant Certificate herewith.
The undersigned requests that a certificate for shares issued
pursuant to this election be registered in the name of
_____________________________________, whose address is
_________________________________ and that such shares be delivered to
______________________________ whose address is ________________________.
To the extent that Warrant Shares represented by the Warrant
Certificate remain available for future exercise, is less than all of the
shares of Warrant Shares purchasable hereunder, the undersigned requests
that a new Warrant Certificate representing the remaining balance of such
shares be registered in the name of _________________________, whose
address is __________________________, and that such Warrant Certificate be
delivered to __________________________, whose address is
_____________________________.
_________________________(1)
(Signature)
Date:
-----------------------
Signature Guaranteed by:
---------------------
Name:
Title:
---------------------
Participant in a Recognized
Signature Guaranty
Medallion Program
----------------------------
(1) The signature must correspond with the name as written upon the face
of the within Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by an "eligible guarantor institution".
EXHIBIT C
---------
Form of Transfer
(To Be Executed Upon Transfer of Warrant)
FOR VALUE RECEIVED, the undersigned registered
Warrantholder of this Warrant Certificate hereby sells, assigns and
transfers unto the Assignee(s) named below (including the undersigned with
respect to any Warrants constituting a part of the Warrants evidenced by
this Warrant Certificate not being assigned hereby) all of the rights of
the undersigned under this Warrant Certificate, with respect to the number
of Warrants set forth below:
Name of Assignee(s) Address Social Security or other Number of Warrants
identifying
number of assignee(s)
Date:
(1)
-----------------------------
(Signature of Owner)
-----------------------------
(Street Address)
-----------------------------
(City) (State) (Zip Code)
Signature Guaranteed by:
-----------------------------
Name:
Title:
--------------------------
(1) The signature must correspond with the name as written upon the face
of the within Warrant Certificate in every particular, without
alteration or enlargement or any change whatsoever, and must be
guaranteed by an "eligible guarantor institution".
